Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Legal Ethics and Professional Responsibility

CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”

CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at https://bit.ly/3WjAZ4m .

The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___, where the plaintiff’s attorney “calculated to keep [the defendant] in the dark” about a lawsuit in order to obtain a default judgment.

Attorneys have an ethical and a statutory duty to warn opposing counsel before requesting default. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

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Don’t Seek Default Without Notifying Opposing Counsel. Just Don’t.

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default.

But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___ didn’t do that. Far from it. Instead, counsel “calculated to keep [the defendant] in the dark” to obtain a default judgment.

In a published opinion, the Court of Appeal reversed the order refusing to set aside the default judgment, and pointedly noted counsel’s ethical shortcomings in the trial court. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

The court also was unhappy with appellate counsel for refusing to acknowledge the ethical shortcomings below.

Driving the dagger even deeper into the landlord, the court noted that the tenant may seek an award of restitution against the landlord. This could include restoring possession to the tenant-appellant, or awarding money damages.

So bookmark Shapell Socal and consider restitutionary remedies if you are an appellant.

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“Ve Haf Vays”: Appellate Court Mediation Programs

Senior Judge Clifford Wallace of the 9th Circuit has said, speaking of appellate court mediation programs, that “we ha[ve] a way to get people to talk.” Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about the effectiveness of appellate court mediation programs — and about one unusual way a judge might get parties to talk.

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Angelina Jolie's Writ Petition Granted to Disqualify Judge for Appearance of Bias

Angelina Jolie and Brad Pitt went the route of hiring a pro tem judge for their family law case. After years of litigating child custody issues (one child is now 18), Jolie discovered their pro tem judge was working on more cases with Pitt's attorneys than previously disclosed. Getting the feeling she was the third wheel in the courtroom, Jolie filed a statement of disqualification.

Although the Superior Court rejected Jolie's objection, in a published opinion in Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958, the Court of Appeal granted Jolie's writ petition. The pro tem judge had failed to disclose all of his appointments on Pitt's lawyers' cases, and the judge's work on those cases, in context with his failure to timely disclose it, created the appearance of impropriety requiring disqualification.

Justice Segal wrote a concurring opinion forcefully calling the Judicial Council to end the practice of allowing pro tem judges to accept private payment, noting that, until 30 years ago, it was not only disallowed, it was criminal: "But just because it is no longer criminal for a temporary judge to receive compensation from private parties doesn't mean it's a good idea."

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://lnkd.in/g23bc4Y.

Christopher Melcher has a nice video explainer on the case here: https://lnkd.in/gbFQz2j.

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Do You Pay Referral Fees? Get Your Client's Signed "Consent,"​ Not Just "Acknowledgement"​

You may be surprised to learn that an attorney's 25% referral arrangement discussed orally with the client, and reduced to a writing signed by the client, is not enough to […]

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